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and extra care, and for that reason railroad compa. nies have the right to reject them. But appellee admits by its demurrer that appellant was not such a passenger, and had never required extra care. We do not desire to intimate any opinion as to what reg. ulations and rules railroad companies may make as to passengers; but we decline to hold that as a proposition of law, stripped of all attending circumstances, public carriers of passengers can reject a person otherwise qualified upon the sole ground that he is blind.

WILL-JOINT WILL-Probate.—It is held by the Supreme Court of North Carolina in In re Davis Will, that a writing purporting to be the joint will of two persons cannot be probated as such in the life of one of them; and that a writing jointly executed by a husband and wife, purporting to be their will, devising to a third person land parts of which belong to each, can be proved as the separate will of the husband, on his death, while the wife is living. The court says:

We omit from our consideration the first error assigned, for in no view can the instrument be proved as the will of both, the wife now living. If established in any way, it must be as the separate will of the deceased husband. The text-books to which we were referred on this subject treat of joint wills, conjoint wills, compacts, and mutual wills, etc., all of which would fall under the first error assigned. There is nothing from which it can be implied even that there was any agreement that, if one should devise to these devisees, the other would do so, or that, if one should afterwards revoke, the other would do so. Either had the right to do so, and without notice to the other. It is not like the case of a mutual will, in which, after the husband's death, by which event the wife's estate was much increased, she makes another will, and diverts the husband's property from the course intended and agreed upon by them at the execution of the joint will. In such case the probate court was unable to control and prevent the wrong, but a court equity takes hold on the ground of preventing a fraud. So, the rights of parties in a court of probate are essentially different from their rights after probate, which are to be administered in another juris diction. Then, why may not a husband and wife convey their separate property by will as well as by deed? The irrevocability in the latter case, and the revocability in the former, necessarily so as long as the party lives, can make no difference, because the act must be as valid at the time it is done in the one case as the other. Third parties are interested in contracts (as deeds), whereas no one can acquire any interest in a devise until after the devisor's death. We find nothing in the statute of wills in conflict with this view. If each had made a separate will at the same time, giving the same property to the same devisees, there could be no doubt of the validity of each, with the power to revoke at any time. Can the fact that they did so by one joint act change the character of the transaction? The intent of both is equally manifest, and the intent is the controlling element, both in the execution and construction of wills.

In Clayton v. Liverman, 2 Dev. & B. 558, the ma jority of the court held that a will jointly executed by wo sisters could not be probated, either as a joint

will or as their separate wills. They died within a few days of each other, and the will was not offered for probate until after the death of both. The decision was upon the ground that it was a very singu lar case, and that such an instrument, as a will, was unknown to the law of this country, and relied upon Hobson v. Blackburn, 2 Eng. Ecc. R. 115. Daniel, J., in his able dissenting opinion, combats the whole argument of the court, and insists that the court misapprehended the judge's opinion in Hobson v. Blackburn, supra. On a close reading of the case, we think the court did misconceive the question at issue in Hobson's Case, and we approve the conclusion in the dissenting opinion. As the question was so ably discussed in Clayton v. Liverman, supra, we are not disposed to repeat it, but only give the conclusion. We find in the books and cases cited below that the current of opinion in the States is contrary to that in Clayton v. Liverman, supra, and we think the reason and common sense of the question are the same way. 1 Schouler, Wills, § 456 (note 4), 457, 459; 31 Law J. (1858-1862) p. 87; 1 Redf. Wills, 182, 183; Theob. Wills, 12; 1 Jarm. Will, 201, note 31, note 5; Betts v. Harper, 39 Ohio St. 639, 641; In re Diez, 50 N. Y. 94; Evans v. Smith, 28 Ga. 98.

Our conclusion is that the instrument offered for probate may be proved now as the separate will of Sutton Davis as to his property described therein, and that, unless in some way revoked, it may, upon the death of his wife, be probated as to her property mentioned therein. Reversed.

CRIMINAL LAW-FALSE PRETENSES-BOGUS CHECK ON BANK.-In Brown v. State, it is held by the Court of Criminal Appeals of Texas that false pretenses may consist of acts, without any verbal assertion; that the mere fact that a purchaser draws a check, in payment, on a bank in which he has neither money nor credit, is not a fraudulent representation that he has money or credit there, which alone constitutes the offense of swindling. The court says in part:

On this subject the court charged the jury, at the instance of the State, as follows: "The jury are charged that, in a case of swindling, it is not necessary that the pretenses, devices, and fraudulent representations should be in words. There may be a sufficient false pretense and device and fraudulent representation in the acts and conduct of the party, without any verbal representations of a fraudulent nature. The mere act of giving a check is a representation that the drawer of the check has sufficient funds on deposit with the drawee, or sufficient credit with such drawee, to give such a check, and that the same will be paid when presented to such drawee." The defendant saved a bill of exceptions to this charge, and assigns the same as error.

The first portion of this charge, as an abstract proposition of law, is correct, to-wit, false pretenses may consist in acts. Mr. Wharton says (see 2 Whart. Cr. Law, § 1170): "The conduct and acts of the party will be sufficient, without any verbal assertion." He cites several illustrations-among others, that of a person who assumed the garb of an Oxford University student and by such garb and conduct represented himself as a student of said university, and so obtained goods. It was held that the false pretenses

were complete, though not a word passed as to his status. And this doctrine is announced by our own court in the case of Blum v. State, 20 Tex. App. 578, cited by the assistant attorney general. That was a case of a merchant who had formerly dealt with the prosecutor, and had represented to him that the busi. ness was his own. On the day of the alleged swindle, at 12 o'clock, the defendant, Blum, secretly sold out his business to his wife and daughter, and thereafter purchased goods of the prosecutor to the amount of about $90. The court in that case say "that no false pretenses in words were made by the appellant, for he was not present in person, and none are shown to have been made by the wife and father-in-law of ap pellant, who acted as his agents in the purchase of the goods; that Goodman, the prosecutor, may have entertained the opinion that the appellant still owned the property in the bakery and grocery, and made the sale upon the belief that he still owned said property. But this did not affect the question, unless the acts of the parties in purchasing the goods induced that belief at the time. It was simply an error of opinion upon the part of the prosecutor in parting with his goods, and the knowledge of the fact that he was acting upon such belief or opinion, without correcting it, will not subject the defendant or his agents to a charge of having made a false pretense by withholding the information which would have corrected that belief. It was his own opinion as to the existence of a fact which did not exist, and not the acts, declarations, or representations of the parties with whom he was trading, which caused him to be deceived." In that case it was held that the principle above announced did not apply, and that there were no such acts and conduct as constitued a fraudulent repre. sentation. Mr. Bishop (2 Bish. New Cr. Law, § 421) cites the following case from the English courts: Where a prisoner was charged with falsely pretending that the postdated check given by himself was a good and genuine order for £25 and of the value of £25, whereby he obtained a watch and chain, and the jury found that, before the completion of the sale and delivery of the watch by the prosecutor to the prisoner, he represented to the prosecutor that he had an account with the bankers on whom the check was drawn, and that he had a right to draw the check, though he postdated it for his own convenience, all of which were false, and that he represented that the check would be paid on or after the day of the date, but that he had no reasonable ground to believe that it would be paid, or that he had the funds to pay it, he was held to be properly convicted. Id.; 2 Whart. Cr. Law, § 1163. In this case, it will be seen that the instrument was in the nature of an after-promise; but it will also be observed that, in connection with said instrument, there was a present representation of an existing fact which was, to-wit, that he had an account with the bank on whom the check was drawn, and that he had a right to draw the check. In a note to these cases, Lesser v. People, 73 N. Y. 78, is cited. In that case the prisoner passed a check on the prosecutor drawn by one Stineback, that was represented by the defendant at the time to be a valid security, and that it was postdated because it was so late in the day and the bank was closed. No account was kept at said bank by the said Stineback, and it was held in that case that the representations constituted a false pretense.

We have examined the authorities accessible to us at this point, and have found no case where the mere drawing of a check on a bank, in which defendant has no funds and has no credit, will constitute the offense

of swindling, and we believe no well-considered case will be found holding such to be the case. In the case of Martin v. State, 85 S. W. Rep. 976, this court held that the drawing of a check, and passing the same, and the statement in connection therewith that the payee would have no trouble in getting his money, was not equivalent to representing that he then had money in said bank, or that he was authorized to draw against it; and the doctrine was there announced that the mere drawing of a check on a bank, in which the drawer had no money or credit, was not a false representation to the effect that the drawer did have funds in said bank, or that he did have credit in said bank, and that this fact alone did not constitute the offense of swindling in our State. This was followed in Ayers v. State (decided at the present term of the court), 38 S. W. Rep. 792. It frequently happens that men in business draw checks or drafts upon banks or upon individuals in whose hands they have no funds and with whom they have no credit. They make no representations in regard thereto; they are asked no questions on the subject; and to hold that the mere drawing of such a check, where the party has no funds, is a fraudulent representation, constituting the offense of swindling, we think would be going too far. There may be cases in which, in connection with such act of drawing a check, the conduct and acts of the party are such as to amount to a fraudulent represen tation that the party has funds or credit in said bank, and so, under such circumstances, the offense may be made out. We would not be understood as holding that there may not be such cases, but we do hold that the mere fact of drawing a check on a bank in which the drawer has no money, funds, or credit is not a fraudulent representation that he has funds or credit in said bank, and will not alone constitute the offense of swindling; and such we understand,to be the charge of the court as applied to this case. In our view the charge of the court was error. Notwithstanding the former decisions, heretofore alluded to, on this subject, we have been induced to further examine the authorities, in order more fully to present our views on this question.

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NEGOTIABLE INSTRUMENT PROMISSORY NOTE-SUFFICIENCY OF CONSIDERATION.-The Supreme Court of Ohio holds in Irwin v. Lombard University, 46 N. E. Rep. 62, that the consideration for a promissory note executed to an incorporated college is the accomplishment of the purposes for which it is incorporated, and in whose aid the note is executed, and such consideration is suffi cient. The court after discussing the general subject of consideration necessary to support a contract, says:

Institutions of this character are incorporated by public authority, for defined purposes. Money re covered by them on promises of this character cannot be used for the personal and private ends of an individual, but must be used for the purposes defined. To this use the university is restricted not only by the law of its being, but as well by the obligations arising from its acceptance of the promise. promise to give money to one, to be used by him according to his inclination, and for his personal ends, is prompted only by motive. But a promise to pay money to such

an institution, to be used for such defined and public purposes, rests upon consideration.

The general course of decisions is favorable to the binding obligation of such promises. They have been influenced, not only by such reasons as those already stated, but in some cases, at least, by State policy as indicated by constitutional and statutory provisions. The policy of this State, as so indicated, is promotive of education, religion, and philanthropy. In addi. tion to the declarations of the constitution upon the subject, the policy of the State is indicated by numerous legislative enactments providing for the incorporation of colleges, churches, and other institutions of philanthropy, which are intended to be perpetual, and which, not only for their establishment, but for their perpetual maintenance, are authorized to receive contributions from those who are in sympathy with their purposes and methods,-the only source from which, in view of their nature, their support can be derived. Looking to the plainly declared purpose of the lawmaking department, promises made with a view to discharging the debts of such institutions, to providing the means for the employment of teachers, to establishing endowment funds to give them greater stability and efficiency, and whatever may be necessary or helpful to accomplish their purposes or secure their permanency, must be held valid. A view which omits considerations of this character is too narrow to be technically correct. It is not contemplated by the parties, nor is it required by the law, that in cases of this character the institution shall have done a particular thing in reliance upon a particular promise. Not only do the law and the parties contemplate the pemanency of the institution, but all promisors understand that the proeeeds of their promises will be mingled with prior and subsequent donations, and together constitute the financial support of the enterprise. The cases must be rare indeed in which such contributions or promises would be made if others had not been made before, and rarer still in which they would be made but for the belief that others will be made afterwards. The requirements of the law are satisfied, the objects of the parties secured, and the perpetration of frauds prevented by the conclusion that the consideration for the promise in question is the accomplishment, through the university, of the purposes for which it was incorporated, and in whose aid the promise was made. The defense properly failed, because there was neither allegation nor proof of abandon. ment of those purposes.

From the very numerous cases in which these views are sustained by adjudications in other States, the following are selected: Trustees, etc. v. Nelson, 24 Vt. 189; Trustees of Maine Cent. Inst. v. Haskell, 73 Me.140; Simpson Centenary College v. Bryan, 50 Iowa, 293; Collier v. Educational Soc., 8 B. Mon. 68; Gar. rigus v. Missionary Soc. (Ind. App.), 28 N. E. Rep. 1000; Barnett v. Franklin College (Ind. App.), 37 N. E. Rep. 427; Trustees of Amherst Academy v. Cowls, 6 Pick. 427; Roche v. Classical Seminary, 56 Ind. 198. Also, Beach, Cont. § 179, note 2. In this State the reported cases, with but one exception, are consistent with these views. Indeed, the validity of such prom. ises is supported by all the cases in which it has been held that subscriptions for public purposes of such a nature are enforceable. For the law, regarding the substance rather than the form, permits no distinction because of the promises being in one instrument or several instruments. And the mutuality of the interests of the several promisors is not to be determined as a matter of time from the dates of their

promises, but from their continuity and perpetuity of the object to be accomplished. In Commissioners v. Perry, 5 Ohio, 56, this court established the validity of subscriptions to the accomplishment of a material purpose. The case of Female College v. Higgins, 16 Ohio St. 20, shows that the purposes of philanthropy are entitled to the same regard, and that the character of the obligation as a subscription is not affected by the fact that it is a separate paper. It also establishes the enforceable character of an instrument differing in no legal sense from that before us. An exam. ination of "the digests of the decisions of the various courts of the State will show that there has been a uniform adherence to these views until the case of Johnson v. Otterbein University, 41 Ohio St. 527, was decided by the commission.

LIABILITY OF A SLEEPING CAR COMPANY FOR LOSS OF EFFECTS OF ITS PASSENGERS.

and

Generally speaking, a common carrier is not responsible to a passenger for the loss of his baggage while en route, unless the same be delivered to it as such and the entire control thereof surrendered to the carrier. The duty which sleeping car companies owe the public is similar to that enjoined by law upon common carries, and it is liable to its patrons wherever a common carrier is. But the liability of these companies is not in all respects that of a common carrier or bailee for hire. Nor is a sleeping car company a carrier of passengers for hire in the usual, compreof that term, hensive, legal sense is not an innkeeper in a like sense. Yet it undoubtedly partakes of the nature of both these public agencies. It is not a common carrier under the agreements usually made by these companies with the railroads, because under such contracts the sleeping cars are pulled by the passenger trains of the railroad company, and over the latter the sleeping car con pany has no dominion whatever. On the contrary, the sleeping car, as well as the officers and servants thereof, are under the control and, in general, subject to the orders of the conductor of the train in which it is drawn. No charge is made by these companies for transportation; the toll which they are authorized to collect extends only to the proper charge for the privilege of occupying the sleeper during the journey paid for. They can make no other charge. The toll for the carriage is paid to the railway company-not the sleep. ing car company. Indeed, this is the first

step that must be taken by the passenger before he is permitted to occupy the sleeper under any circumstances. The nature of these companies is really more akin, perhaps, to that of public inns. But as the innkeeper absolutely owns and controls his premises, and may accommodate any one applying regardless of whether a privilege has been first purchased of some other, it necessarily follows that the status of a sleeping car company ís, in law, quite different from that of an innkeeper. The latter is untrammelled by any superior authority, while the servants of the sleeping car company are under the authority of the transportation company-to the extent, at least, that it cannot take any toll for the privileges it offers the public until the passenger has purchased his right to be carried by the railway company. As a general rule, a sleeping car company cannot be required to carry more baggage than is necessary for the passenger to take with him on the journey in view. Being without equipment for storing baggage, such as trunks, etc., and not being adapted to the carrying of such baggage, it doubtless could not be required to carry even such trunks as are usually taken on an ordinary journey. The carriage of these is for the railroad, and it is a duty incident to the carriage of the passenger, and entirely separate from that of the sleeping car company to its patrons. While it is true that these companies hold themselves out to the world as possessing superior facilities for those traveling upon railroads, and invite the public to use the accommodations thus afforded, yet, in a strict sense, they are not, as a rule, liable as innkeepers for the effects of passengers. But while these companies are not liable as innkeepers, the law imposes duties upon them of a similar nature. They must, at their peril, employ honest servants. They cannot screen themselves from liability for the thefts of these. They must exercise every reasonable precaution to prevent the loss of the baggage of the guests while on its cars, especially while asleep. They provide cars constructed

1 Blum v. Southern Pullman Palace Car Co., 3 Cent. L. J. 591; Woodruff Sleeping and Parlor Coach Co. v. Diehl, 84 Ind. 474; Pullman Palace Car Co. v. Smith, 73 Ill. 360; Wood on Railroads (3d Ed.), p. 1706; Thompson on Carriers of Passengers, p. 530; Welch v. Pullman Palace Car Co., 16 Abb. Pr. (N. S.) 352; Lewis v. New York Central Sleeping Car Co., 143 Mass. 267, 9 N. E. Rep. 615; Stephenson v. Pullman Palace Car Co. (Tex. Civ. App.), 32 S. W. Rep. 335.

for the purpose of sleep during the night and for comfort and ease during the day; but more especially are these cars adapted to sleeping purposes. They serve the purpose en route which the inn serves at the end of the journey; and as the innkeeper must provide honest servants into whose custody the effects of his guest are entrusted in the usual course of things, so must the sleeping car company equip itself with servants in whose integrity and fitness the passengers, at least while asleep, may repose implicit confidence. The public have the right to indulge the presumption that honest servants are selected and that all reasonable precautions are taken to guard against thefts. So unbending, in deed, is this rule, that the company cannot claim immunity from a loss occasioned by the negligence of the passenger in exposing his effects to the servants, and thereby tempt their cupidity. And while the passenger is asleep the servant necessarily has many op portunities of ascertaining what effects he may have, as well as the nature and value of the same. So, in all cases of theft by the servant of the company it will be liable. A notice posted by a sleeping car company warning all passengers that it will not be lis ble for effects when lost or stolen will not serve to relieve it from liability unless seen by or made known to the passenger. And on principle it is very doubtful if the actual bringing of such notice home to the passenger would release the company from liability aris. ing from the neglect of a duty imposed upon it by law. This duty cannot be supplanted nor its requirements repudiated at the option of the company exercised by posting a notice. in its cars to this effect.4 But doubtless a sleeping car company could establish and enforce a regulation requiring the passenger to surrender his effects to the custody of its servants as a condition of its liability for any loss thereof, as is usually done by the hotels throughout the country. And such a rule, brought to the knowledge of the passenger,

2 Root v. New York Sleeping Car Co., 28 Mo. App. 99; Pullman Palace Car Co. v. Mathews, 74 Tex. 654. 12 S. W. Rep. 144.

3 Lewis v. New York Central Sleeping Car Co., 143 Mass. 267, 9 N. E. Kep. 615.

4 Little Rock & Ft. Smith Ry. Co. v. Cravens, 67 Ark. 112, 20 S. W. Rep. 803; Louisville & Nashville R. R. Co. v. Gilbert, 88 Tenn. 430, 12 S. W. Rep. 1018: Stephenson v. Pullman Palace Car Co. (Tex. Civ. App.), 26 S. W. Rep. 112.

would operate to release the company from liability for any loss or theft of effects not so surrendered. It is true that when the effects of a passenger are thus delivered up to the sleeping car company it thereby becomes a bailee for hire and liable to the passenger accordingly. So where a lady passenger entrusted her baggage to a servant of the sleeping car company to be taken to the waiting room of the station at which she was to stop, and while so entrusted to such servant it was lost, it was held that the company was liable therefor. But it must either assume this liability, or, declining so to do, protect its patrons while they sleep by keeping a watch. over their effects commensurate with the necessary safety. The duty of these companies to protect the baggage of their patrons in the day time, however, is not so stringent. The law presumes that while the passenger is awake he will take proper care of his bag gage. He is, in the day time, just as capable of taking the necessary care of his things as are the servants of the company, if not more so. His duty to look after his own property in the day time is practically the same as though he were riding in an ordinary day coach. And if his negligence in not properly looking after his effects contributes to bringing about its loss, except by theft by the company's servants, perhaps he must bear the same. Where a passenger in a parlor car went out for several minutes leaving her satchel on a window sill where it could be easily seen, and it was stolen while she was 50 away, it was held that there could be no recovery. Likewise where a passenger left his valuables in his berth and went out of the car but for a minute, and same were stolen while he was absent, there was no right of action therefor. And it is such negligence in a passenger as will bar a recovery for him to leave his baggage in his berth and go to the washroom or other part of the car where they will be out of his sight,

Bunch v. Ry. Co., 17 Q. B. Div. 215, 13 App. Cas. 31; Richards v. Ry. Co., Man. G. & S. 839; Hutch. Carr. Sec. 690; Pullman Palace Car Co. v. Lowe, 28 Neb. 239, 44 N. W. Rep. 226.

Voss v. Cleveland, C. C. & St. L. Ry. Co. (Ind. App.), 43 N. E. Rep. 20; Richards v. London, B. & S. C. Ry., 7 Man. G. & S. 837.

Whitney v. Pullman Palace Car Co., 143 Mass. 243,9 N. E. Rep. 619.

Elron v. Wagner Palace Car Co., 59 Mo. App. 641.

In short,

though but for a very short time. the passenger, when awake, must use every reasonable precaution to secure his property from theft or other loss. And if, in order to properly guard against such hazard, he must keep it under his eye or in his manual possession, this will be required of him at his peril. The rule is grounded on the reason that the degree of care required of a sleeping car company in protecting the effects of its passengers does not extend to insuring property carried on the person or in the hand; that the company is only required to use such caution and prudence as, from the circumstances of the case, are reasonable and necessary. Nor would this rule extend to protecting the passenger's effects from an overpowering armed force such as a band of train robbers. No ordinary prudence on the part of the sleeping car company could provide against such an unusual and powerful attack. The passenger, therefore, would have to suffer the loss so brought about whether it be in the day or night time. But the duty of these companies to keep a watch over the effects of passengers while asleep is very great, being little if any short of that which an innkeeper owes to his guests. The passenger, while asleep, is not capable of keeping a proper watch over his luggage or valuables, and this necessarily being true, it devolves upon the company to keep such watch for him. And as it is impossible to keep such watch unless a sufficient force of servants be employed for the purpose, the duty of keeping such a force is consequently imposed. In a late case where the company kept only a single person on its cars during a run from New York to Boston, which person was required to perform the duties of porter, bootblack and conductor, it was held that the company would be liable for the loss of valuables of a pasenger while asleep because the duty to maintain a sufficient force of efficient servants and that degree of care requisite to the safety of the property of passengers had not been performed.10 Theft from the sleeping passenger is not a case of robbery by violence, but by a stealthy larceny. Unless a watchman be kept constantly in view of the center aisle of the

9 Chamberlain v. Pullman Palace Car Co., 55 Mo. App. 474.

10 Carpenter v. New York & N. H. R. Co., 124 N. Y. 53, 26 N. E. Rep. 277.

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